Discipline of Handicapped Has Been Guided by Courts

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The discipline of handicapped students has been a source of confusion and frustration for both advocacy groups and local school officials since P.L. 94-142, the Education for All Handicapped Children Act, took effect in 1978.

Neither P.L. 94-142 nor its accompanying regulations specifically address discipline, but federal courts have tended to view long-term suspensions and expulsions as changes in the educational placement of students, thus subject to extensive consultation among the teachers, other professionals, and parents who make up each handicapped child's placement committee.

The best-known case on the disciplining of handicapped students--and the first to reach a federal appellate court--is S-1 v. Turlington, in which nine mentally retarded students sued Florida's commissioner of education, Ralph D. Turlington, contending that they had been improperly expelled from school.

The U.S. Court of Appeals for the Fifth Circuit ruled last year in S-1 that under P.L. 94-142 and Section 504 of the Rehabilitation Act of 1973, handicapped children are entitled to more detailed procedural protections than are non-handicapped students facing exclusion from school. (Florida has since been moved to the jurisdiction of the Eleventh Circuit.)

Among other findings, the appellate court ruled in issuing a preliminary injunction that a student may not be expelled for misconduct directly related to his handicap; that school authorities bear the burden of proving that the behavior does not stem from the handicap; that the determination must be made by "a qualified group of individuals"; and that, if a handicapped student is expelled from school, he is nonetheless entitled to some educational services.

The Fifth Circuit relied heavily on the testimony of a clinical psychologist who testified that virtually any handicap--not just an emotional disorder or severe retardation--can so frustrate a child that he might react to stress in disruptive ways.

'Double Standard' Established

Given that assumption, many educators say, it is nearly impossible to prove that a student's misbehavior is unrelated to his handicap. So while the S-1 decision technically permits schools to exclude disruptive or dangerous students, critics of the order say it is practically impossible to do so. And, they claim, it has set up a "double standard," with one set of expectations for handicapped students and another set for the rest.

"It just doesn't work," said John W. Bowen, an Orlando lawyer who defended the Hendry County school district in S-1 and frequently advises other districts on compliance with the order.

"When you get into the real world and try to apply the principles promulgated by the Fifth Circuit, you find that those processes for determining educational placement are good for determining what is in the best educational interests of the child, but they do not determine whether the child is guilty of misconduct."

Although the Supreme Court declined last fall to hear the state's appeal of the preliminary injunction in S-1, it may yet rule on the issue. The case still must be tried on its merits, and an appeal is likely whatever the outcome.

In the interim, many school districts--including some outside the jurisdiction of the Fifth and Eleventh Circuits--have relied on the principles outlined by the appellate court for guidance, and in many cases have gone beyond them. While the required procedures are sometimes described as cumbersome, some districts appear to have had no major problems complying with the standards.

In Jefferson County, Ky., for example, the school board recently adopted a policy that closely conforms to the standards set forth in the S-1 order, but applies to students who have been referred for evaluation because a disability is suspected as well as to those already diagnosed and placed in special education programs.

"There was a lot of initial resistance [from teachers and principals] because it creates a lot of paperwork and slows down the process," said Stuart Sampson, director of pupil personnel for the 90,000-student district that includes Louisville. "And a lot of people think that if a behaviorally disordered kid busts his teacher in the mouth, it seems kind of silly to have a [placement-committee] meeting to see if the behavior disorder figured in it."

The Dade County (Miami) school board has given preliminary approval to a policy that, in addition to providing the procedural safeguards ordered by the federal appellate court, does not allow corporal punishment to be administered to handicapped students more than twice per year without the approval of the student's placement committee. The policy would, however, allow schools to suspend handicapped students for up to 10 days for "persistent disobedience and/or gross misconduct."

And in Pinellas County, Fla., a 90,000-student district that includes St. Petersburg, school officials have taken the precaution of writing disciplinary options, with parents' approval, into the individual educational programs of all handicapped students.

"We might not necessarily use the word suspension in the contract," said J. Howard Hinesley, assistant superintendent for exceptional child education. "We may have in the contract with the parents that if the child gets into a fight the parent will be called and there will be an automatic two-day 'cooling-off period.'

"On the other hand, other parents don't mind the word suspension, so sometimes that may be in the contract.

"We think it protects us from suits," Mr. Hinesley continued. "If nothing else, we're communicating with them. Sometimes we ask, 'If Billy hits Bobby over the head with a desk, do you think that should go unpunished? What would you suggest we do? What would you do if he did it at home?' I think in most cases the parents understand."

Jacob A. Rose, attorney for the plaintiffs in S-1, said most Florida districts have also adopted policies that categorize suspensions as changes in placement. "They're going along with it," he said. "But there are still too many suspensions."

Officials of most of Florida's 67 school districts, and some from other states, have banded together to ask Congress to amend P.L. 94-142 to specify that suspension and expulsion are not "changes in educational placement."

The due-process hearings given all students facing disciplinary action should be sufficient to protect the rights of handicapped students, said Mr. Bowen, who is leading the effort to amend the federal statute.

"If it's not a behavioral handicap, or if it's not a handicap where the student is so far mentally retarded that he cannot understand rules, if it's not that kind of a problem, then the handicapping condition does not excuse the misconduct. It merely explains it," Mr. Bowen said.

Vol. 01, Issue 22

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